Kiwi's discrimination complaint upheld by Aussie tribunal
from : http://www.nzherald.co.nz/world/news...ectid=10714219
A tribunal has upheld a race discrimination complaint against a legal definition used to deny disaster recovery payments and social security to thousands of New Zealanders living in Australia. The decision against ACE Insurance Ltd opens the way for more anti-discrimination action against companies and state governments across Australia, successful applicant David Faulkner claims. His race discrimination allegation against the company was over rules limiting its American Express Repayment Protection (AERP) policy to "Australian residents". That excluded New Zealanders defined as "non-protected" visa holders under the Family and Community Services Legislation Amendment (New Zealand Citizens) Bill 2001, because they arrived in Australia after February 26, 2001, or who were on long-term trips overseas on that date. The same social security law has been used to deny disaster recovery payments to thousands of Kiwis caught up in the Queensland floods and Cyclone Yasi and to stop social security for sick and disabled New Zealanders. It is thought to affect up to 176,000 people - or 47 per cent of the New Zealanders living in Australia. Mr Faulkner had moved to Australia in 1970, when he was six years old, but has a non-protected Visa because he was stationed overseas on a long-term work placement on February 26, 2001. After repeated complaints to the company over its refusal to cover him, he lodged a suit with the Equal Opportunities wing of the New South Wales tribunal in September 2009. Its verdict, delivered in February, upheld an allegation of indirect race discrimination and required the company to change its policy. Mr Faulkner was denied benefits that would have been available to Australians because of his status as a New Zealand citizen, the decision stated. "The Tribunal concludes that Australian citizens, in the same circumstances, or circumstances not materially different, would not have been refused cover under the AERP Policy by ACE. "This finding is sufficient to establish that Mr Faulkner was treated less favourably than a person of a different citizenship or nationality." The tribunal decision could set a precedent which could be used against Australian state governments in future cases, said Mr Faulkner. "In effect, the Equal Opportunity Tribunal found that the definition of 'Australian resident' in the Social Security Act discriminates against New Zealanders. "There are governments across Australia doing virtually the same thing. They directly use New Zealand citizenship as a reason to reject you. "The ramification is that you could see major class action by Kiwis that have been discriminated against. The direct implication is that all companies who have been using this definition of Australian resident will have to review their polices." The Queensland state government has already confirmed to Mr Faulkner that it is reviewing its eligibility criteria for public housing assistance in light of the decision against ACE Insurance. New Zealander Glenda Campbell, whose 19-year-old daughter Hannah needs 24-hour care for severe cerebral palsy, is one of those who is taking action over what she sees as discrimination. The Toowoomba resident has been turned down for three federal disability support allowances since arriving in Australia in 2006. She is preparing to lodge a human rights complaint against the Australian Government with the United Nations and considering a claim of discrimination against the Queensland Government. "I'd like to see everyone who comes to Australia in our situation get treated well. We're ANZACs, after all. But this is discriminatory." Hank Jongen, manager of Australian social security agency Centrelink, would not discuss the case of Ms Campbell for privacy reasons. But he said a range of support payments could be available to New Zealanders on non-protected visas, including the Disability Support Pension if a person is deemed severely disabled. Foreign Minister Murray McCully recently said he was "concerned" at New Zealanders being denied social security payments in Australia. There was no similar non-protected visa status for Australian immigrants in New Zealand, he said. "No doubt this is a matter we will discuss with our Australian colleagues in due course." But he was reluctant to criticise the Australian Government over the imbalance, as it was dealing with a far greater number of immigrants than the New Zealand Government. "I understand the changes that took place in 2001 were designed to deal with substantial cost pressures that emerged as New Zealanders took access to the welfare system there. "The situation is different because the numbers are vastly different." |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Odd. You would think it is up to a government to decide its visa categories and then people to accept them when migrating or go through the proper process of applying for permanent residency? I guess we would have to read the detail of the decision to understand the reasoning.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by jimmyoz2010
(Post 9256303)
...
But he was reluctant to criticise the Australian Government over the imbalance, as it was dealing with a far greater number of immigrants than the New Zealand Government. ... |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by fish.01
(Post 9256389)
Odd. You would think it is up to a government to decide its visa categories and then people to accept them when migrating or go through the proper process of applying for permanent residency? I guess we would have to read the detail of the decision to understand the reasoning.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Rambi
(Post 9256420)
There's a reason for that. You'd think that the NZ government would have said something between 2001 and now if they were concerned about it. :sneaky:
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by jimmyoz2010
(Post 9256491)
Faulkner v ACE Insurance Limited [2011] NSWADT 36, see http://www.caselaw.nsw.gov.au/action...?jgmtid=150396
It appears the finding of direct racism was dismissed: "82. In summary, therefore, the Tribunal concludes that although Mr Faulkner was the subject of differential treatment this was not "on the ground of race [in the sense of nationality or citizenship]". Thus, he has failed to make out a case of direct discrimination under s 7(1)(a) of the ADA in respect of the AERP Policy." It seems indirect racism was allowed only because the exclusion was deemed unnecessary. Because only residents get unemployment benefits the company mistakenly thought that only residents could register with centrelink. To claim the companies unemployment insurance they required people to prove they were unemployed by registering with centerlink. They thought this disqualified non-protected SCV holders: "118 In the light of this evidence, it appears to the Tribunal that a major reason why the requirement was initially imposed was based on a misunderstanding of who could be registered with Centrelink. Given the fact that non-protected SCV holders can be registered with Centrelink and there is no greater risk of identity fraud with non-protected SCV holders compared to other Australian residents, it cannot be concluded that the requirement is appropriate and adapted to its purpose or that it has a logical basis. There is a less discriminatory option, which accommodates of the needs of Mr Faulkner and other non-protected SCV holders and which would be satisfactory from ACE's perspective. ..." Oddly the complainant was eligible for 'protected status' but he just didn't apply. |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
basically private companies can no longer use the definition in social security act or citizenship act or they could face prosecution.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by fish.01
(Post 9256597)
Oddly the complainant was eligible for 'protected status' but he just didn't apply.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by jimmyoz2010
(Post 9256634)
basically private companies can no longer use the definition in social security act or citizenship act or they could face prosecution.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by jimmyoz2010
(Post 9256635)
there is a time limit.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by fish.01
(Post 9256665)
Yes indeed...just thought it strange that someone who seems so particular did not apply at the time when he was eligible. Maybe he is taking advantage of the tax benefits or has another reason.
fish are you a lawyer? |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by jimmyoz2010
(Post 9256688)
changes were badly advertised. David did not find out until he applied for citizenship some years after. you may be interested to know Russel Crowe is in the same boat.
fish are you a lawyer? |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by fish.01
(Post 9256696)
I remember them being all over the news at the time? .
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
You have brought this up many times before.
The easy resolution to this "discrimination" is for Australia to treat New Zealanders as they treat every other nationality, and deny them any residence unless they apply for and are awarded a temporary or permanent visa. Why did Mr Faulkner not apply for Australian citizenship, which he had been elegible for since he was 8 years old? New Zealanders ability to live in Australia without any sort of visa application is very privileged, and to stir the pot by complaining about not being treated the same as Australians risks being denied this type of privileged entry in the future. I don't think any of us want that. BB |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Buzzy--Bee
(Post 9257538)
You have brought this up many times before.
The easy resolution to this "discrimination" is for Australia to treat New Zealanders as they treat every other nationality, and deny them any residence unless they apply for and are awarded a temporary or permanent visa. Why did Mr Faulkner not apply for Australian citizenship, which he had been elegible for since he was 8 years old? New Zealanders ability to live in Australia without any sort of visa application is very privileged, and to stir the pot by complaining about not being treated the same as Australians risks being denied this type of privileged entry in the future. I don't think any of us want that. BB ""The ramification is that you could see major class action by Kiwis that have been discriminated against." That would go down like a lead ballon with Australians and might well see a change in the migration laws covering New Zealanders. |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
The 444 visa is a funny one indeed. We are on it and very grateful for it, esp as we may have missed the boat for converting it to PR (over 45, recent job changes blah blah). We love it here and would dearly love to convert it to PR and get our Oz citizenship as this is truly home.
The trouble as I see it with 444 is it is legally a temporary visa which gives you some permanent rights. This can get very confusing for officialdom type peeps eg schools, regulatory bodies, etc as you are technically a temporary visa holder who lives here permanently, forms can be a nightmare!!! Also as the same quirks do not apply to Australians living in NZ there is some disparity, which leads to confusion. The whole thing can seem a little ill conceived at times. For example if we go for PR we have to have medicals. Ok thats fine and I get that medicals are to ensure you won't be a burden to the health system, and I am fine with that. However as NZ'ers we have medicare so isn't the medical a bit of a pointless exercise?! The more you live on a 444 the more you notice these quirks, so I am not really suprised that people have used the legal system to try and get some clarity. |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Well done, good job.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by jimmyoz2010
(Post 9256497)
it was raised in 2001 when changes went through
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by iamthecreaturefromuranus
(Post 9257633)
It would probably do NZ good, if Australia insisted that all Kiwi's go through the same visa process the rest of us have to do. It would stop the outflow of people from NZ to Australia in its tracks.
Basically everyone would be a winner |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257823)
Good point - making it harder for Kiwis to get here would be a big benefit to the NZ economy - what little there is of it.
Basically everyone would be a winner |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257890)
Yeah NZ is pathetic compared to Australia, especially the pathetic little economy and the wanker accents, just like Australia as pathetic compared to the UK and the UK pathetic compared to the US. Haha - look at me, I'm better than you.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257890)
Yeah NZ is pathetic compared to Australia, especially the pathetic little economy and the wanker accents, just like Australia as pathetic compared to the UK and the UK pathetic compared to the US. Haha - look at me, I'm better than you.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Buzzy--Bee
(Post 9257898)
Accents aside, one of the biggest things holding back New Zealand's further development is the attitude of it's people that it is already as developed as Australia, UK, US etc.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257890)
Yeah NZ is pathetic compared to Australia, especially the pathetic little economy and the wanker accents
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by iamthecreaturefromuranus
(Post 9257899)
the Clangers can take the Klingons anyday.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257910)
Too true cussie
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Buzzy--Bee
(Post 9257898)
Accents aside, one of the biggest things holding back New Zealand's further development is the attitude of it's people that it is already as developed as Australia, UK, US etc.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257913)
No way, the Klingons have cloaking on their ships - what do the Clangers have? Not that I know who they are!
That's all any one needs. |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257913)
No way, the Klingons have cloaking on their ships - what do the Clangers have? Not that I know who they are!
Enjoy :) |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Dreamy
(Post 9257922)
They have the Soup Dragon.
That's all any one needs. |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257918)
Nice one digger, pin another tail on the donkey and chuck a prawn on the dingo.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257921)
On our recent trip there I found it to be a beautiful, pleasant place to visit, and the people are very friendly - but that's about it. I have never been to a country where so many of it's people want to leave.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257926)
What a waste of prawns cussie bro - although I'm sure the Dingo would enjoy them
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Dreamy
(Post 9257922)
They have the Soup Dragon.
That's all any one needs. |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257928)
What a huge load of rubbish.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257929)
You shouldn't mock the Maoris so much.
I don't believe in discrimination |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257928)
What a huge load of rubbish.
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257933)
I'm mocking all Kiwis
I don't believe in discrimination |
Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Amazulu
(Post 9257931)
Just calling it as I saw it cussie
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Re: Kiwi's discrimination complaint upheld by Aussie tribunal
Originally Posted by Fluid36
(Post 9257942)
Only Maoris use the term 'cuzzies' mate.
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